Opinion
December 23, 1991
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court did not err in denying that branch of his omnibus motion which was to suppress statements he made to the police. The arresting officer observed the defendant outside a residence as he removed a piece of wood covering a window and attempted to open the window. He approached the defendant for the purpose of making an investigative inquiry, and asked the defendant if he lived there. The defendant was not subjected to custodial interrogation and Miranda warnings were not required prior to the inquiry (see, People v Bennett, 70 N.Y.2d 891; People v Morales, 65 N.Y.2d 997; see also, People v Huffman, 41 N.Y.2d 29; People v Stackhouse, 160 A.D.2d 822; People v Freeman, 149 A.D.2d 727), and his response was properly admitted in evidence at the trial.
Similarly unavailing is the defendant's contention that the sentencing court erred in imposing a mandatory surcharge and victim assistance fee. The imposition of a surcharge and a victim assistance fee is required by statute (see, Penal Law § 60.35 [b]). While the surcharge may be waived upon a showing that its payment "would work an unreasonable hardship on the person convicted" (CPL 420.35; see, People v Mitchell, 116 A.D.2d 596), no proof was submitted to support the defense counsel's unsubstantiated assertion that his client lacked the funds required to pay the amount imposed (see, People v Williams, 131 A.D.2d 525). Additionally, the defendant was not entitled to a hearing on the issue of his purported indigence, since the defendant declined to appear for sentencing and thus was sentenced in absentia. Moreover, in view of the defendant's absence and the failure to offer any evidence regarding his financial status, such a hearing would have served no purpose. Finally, we note that the appropriate procedural vehicle for raising a claim of undue hardship is to move in the Supreme Court for resentencing (see, CPL 420.10; People v Rada, 160 A.D.2d 552; see also, People v Salamino, 134 A.D.2d 379). Sullivan, J.P., Lawrence, Rosenblatt and O'Brien, JJ., concur.